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A Miami judge has dismissed a massive lawsuit involving more than two dozen law firms, three years of court battles, millions of dollars in legal fees and 13 of America’s wealthiest people. Miami-Dade Circuit Judge Thomas Wilson Jr. ignored dozens of motions to dismiss the case of Boca Investors Group versus residents of Florida’s tony Fisher Island before finally granting one based on the unusual notion that litigation itself is immune from litigation. In other words, can you sue someone for filing a lawsuit, especially if the lawsuit was filed intentionally to sink a deal or merger? Jeff Feldman, a partner at the law firm Feldman Gale & Weber in Miami and a newcomer to the case, made the successful argument against the wishes of a myriad of other defense lawyers. The aftermath has lawyers fighting for credit for the huge win, arguing back and forth about who did what and when. “There were tactical disagreements among defense counsel, but I’m not at liberty to explain them,” said Lewis Brown, whom the judge appointed liaison counsel for the defense team because there were so many lawyers on the case. “But, hey, I’ll be happy to give Jeff Feldman credit.” Another attorney in the case, however, insisted the win was his doing. “The idea was mine,” said Marc Cooper, a partner with Colson Hicks Eidson in Coral Gables, Fla. The original case was filed in 1998, shortly after Boca Investors Group lost its financing to purchase the 216-acre Fisher Island, among the most exclusive condo developments in the United States and home to such celebrities as Oprah Winfrey and tennis star Boris Becker. The group, headed by developer Brian Street, alleged that residents of the island’s 600 units committed tortious conspiracy and tortious interference by attempting to ruin the sale by filing a series of “non-meritorious” lawsuits on the eve of the closing. The list of defendants included Port of Miami Medical Clinic owner Irwin Potash, former Cigarette Racing Team owner Robert Torter and the former chairman of Thomas Cook Travel, David Paresky, as well as their lawyer, Ronald Shapo and his former law partners. The group sought to recover $100 million in damages, interest and costs. The defendants lined up a roster of high-profile lawyers, including Brown, a partner at Gilbride Heller & Brown in Miami; Michael Nachwalter, a partner at Kenny Nachwalter Seymour Arnold Critchlow & Spector of Miami; and Robert Burlington, a partner at Aragon Burlington Weil & Crockett of Miami. Gerald Richman, a partner at Richman Greer Weil Brumbauch Mirabito & Christensen of West Palm Beach, represented Boca Investors Group. “At one time, 25 law firms were involved,” Brown said. “This was huge. The attorneys’ fees will be in the millions.” The suit alleged that the residents — who opposed further development and declared an unofficial building moratorium on the island — threatened Boca Investors with “massive litigation” should the company proceed, according to the developer. The residents previously tried to buy the island themselves for $10 million, but the sale fell through when they couldn’t agree on terms among themselves. Boca Investors Group claimed it had financing lined up through a number of banks, which backed out after learning of the litigation. Ultimately, according to the lawsuit, the developer obtained financing through Ocean Bank. But by that time, John Melk, a resident who co-founded Blockbuster Video, had paid $55 million to buy the island. Lawyers for Boca Investors claimed they obtained three “smoking gun” memos that proved their point. One, which the lawyers said took two-and-a-half years to get, allegedly showed how residents brainstormed about what types of litigation they could file to derail the sale. Another allegedly asked residents to contribute money for legal expenses. The defense lawyers acted both separately and in concert, each filing an array of motions to dismiss, yet setting strategy jointly. It’s not clear who hatched the idea to make the case that litigation is immune from other litigation. But one of the defense lawyers — who exactly is what attorneys now are quibbling about — unearthed a supporting 1994 case: Levin Middlebrooks Mabie Thomas Mayes & Mitchell, P.A. v. United States Fire Insurance Co. The Florida Supreme Court ruled in the case that an attorney’s acts during the course of litigation are not just subject to a “qualified” privilege but are subject to an “absolute” privilege. The justices wrote, “We find that absolute immunity must be afforded to any act occurring during the course of a judicial proceeding, regardless of whether the act involves a defamatory statement or other tortious behavior such as the alleged misconduct at issue, so long as the act has some relation to the proceeding.” Defense attorneys used that ruling to argue that Boca Investors Group could not sue the residents merely for filing lawsuits. Marc Cooper, an attorney who represented attorney Ronald Shapo, said the immunity issue had been raised peripherally earlier, but that he was the first to base a motion to dismiss solely on that argument. Cooper said it was clear during a long hearing on that motion in May that Judge Wilson accepted the argument. Previously, Cooper said, the judge seemed to reject the idea whenever it came up, even peripherally. “It became crystallized and the judge made it clear that he was looking favorably upon it,” he said. “The judge began to re-evaluate his position.” It was then, according to Cooper and other lawyers, that Feldman decided to use the same argument in a motion to judgment he filed on behalf of resident Arnold Broser. Feldman also filed his motion in May. Feldman claims the immunity argument was his brainchild and that he directed Larry Gordon, a lawyer at the firm, and Karen Marriott, an independent contractor, to search for case law to support the idea. When he came up with it, Feldman said, he gave the information to Cooper. Cooper says he came up with the idea himself. Feldman had joined the case only a few months earlier and was the newcomer to a team of lawyers in place for several years, which spent hours upon hours in depositions with bank officials. The team was preparing to argue for summary judgment in the fall, solely on the merits of the case in the fall. “We felt confident that they did not have much of a case,” said Nachwalter. “Their day of reckoning was coming up.” None of the other lawyers wanted to join Feldman’s motion at the time. “I don’t think many lawyers appreciated the full range of immunity,” said Feldman. Brown, the liaison counsel in the case, acknowledged that the defense team filed “many, many unsuccessful motions to dismiss” before Feldman struck gold. And once Judge Wilson granted Feldman’s motion in August, the other lawyers were happy to sign on. Plaintiffs’ lawyer Richman has already filed an appeal with the 3rd District Court of Appeal in Miami. “We are confident we’ll win on appeal,” he said. “If the case could be dismissed in its present posture, that means if, say, you wanted to kill the merger between AOL and Time Warner, all you would have to do is file a spurious lawsuit and there’d be no recourse.” To bolster their chances of success, the defense is including various other arguments in addition to immunity. At the end of the day, though, the residents won a Pyrrhic victory. John Melk, who bought the island when the residents couldn’t, is building single-family houses on the island set to cost $3 million to $6 million each — exactly what the residents fought against.

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